Citation NR: 9717494
Decision Date: 05/19/97 Archive Date: 05/29/97
DOCKET NO. 94-40 764 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to service connection for a skin disorder on the
hands and arms, claimed as residuals of exposure to mustard
gas during service.
REPRESENTATION
Appellant represented by: American Red Cross
ATTORNEY FOR THE BOARD
W. Yates, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1945 to March 1947
and from September 1955 to September 1957.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 1993 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Jackson, Mississippi. That rating decision denied service
connection for a skin disorder of the hands and arms, claimed
as residuals of exposure to mustard gas during service.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that the RO committed error
in denying service connection for a skin disorder of the
hands and arms, claimed as residuals of exposure to mustard
gas during service. He specifically alleges that he was
exposed to mustard gas “at Shepperds Field in Texas between
1945 and 1947.”
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that
the appellant has not met the initial burden of submitting
evidence sufficient to justify a belief by a fair and
impartial individual that the claim for service connection
for a skin disorder of the hands and arms, claimed as
residuals of exposure to mustard gas during service, is well
grounded.
FINDINGS OF FACT
1. There is competent medical evidence of a current
dermatitis disorder.
2. Dermatitis is not among the disorders for which the law
provides a presumption of service connection when they
manifest themselves subsequent to exposure to mustard gas in
service.
3. No medical evidence has been presented or secured in this
case to render plausible a claim that the veteran’s current
dermatitis disorder is the results of exposure to mustard gas
in service.
4. The veteran has not presented competent evidence of a
nexus between his current dermatitis disorder and his active
service
5. The veteran has not presented a plausible claim for
entitlement to service connection for a skin disorder of the
hands and arms.
CONCLUSION OF LAW
The appellant has not presented a well-grounded claim for
service connection for a skin disorder of the hands and arms
as residuals of exposure to mustard gas during service, and
therefore, there is no statutory duty to assist the appellant
in developing facts pertinent to this claim. 38 U.S.C.A.
§§ 101(16), 1110, 5107(a) (West 1991); 38 C.F.R. §§ 3.303(b),
3.316 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Preliminary Considerations
Pursuant to 38 C.F.R. § 3.316 (1996), service connection may
be established for the development of certain claimed
conditions when there was exposure to specified vesicant
agents during active military service. When there was full-
body exposure to nitrogen or sulfur mustard gas during active
service the listed conditions are chronic conjunctivitis,
keratitis, corneal opacities, scar formation, nasopharyngeal
cancer, laryngeal cancer, lung (except mesothelioma) cancer
and squamous cell carcinoma of the skin. When there was
full-body exposure to nitrogen or sulfur mustard or Lewisite
during active service the listed conditions are chronic
laryngitis, chronic bronchitis, chronic emphysema, chronic
asthma or chronic obstructive pulmonary disease. When there
was full-body exposure to nitrogen mustard during active
service the listed condition is acute nonlymphocytic
leukemia. Service connection may not be established for any
of these conditions if the claimed condition is due to the
veteran’s own willful misconduct or if there is affirmative
evidence that establishes a nonservice-related condition or
event as the cause of the claimed condition. 38 C.F.R.
§ 3.316 (1996).
The regulations which establish presumptive service
connection for certain medical disorders with respect to
mustard gas exposure subsume the requirement of a nexus or
link. Therefore, the determinative issues presented by the
claim are: (1) whether the appellant had full body exposure
to mustard gas during service; and (2) whether he has any of
the current disorders subject to the presumption.
Notwithstanding the foregoing, the United States Court of
Appeals for the Federal Circuit has determined that specific
VA regulations which provide for presumptive service
connection for disabilities resulting from exposure to
various toxins such as radiation or Agent Orange do not
preclude a veteran from establishing service connection with
proof of actual direct causation. Combee v. Brown, 34 F.3d
1039 (Fed.Cir. 1994). However, the United States Court of
Veterans Appeals has held that where the issue involves
medical causation, competent medical evidence that shows that
the claim is plausible or possible is required to set forth a
well-grounded claim. Caluza v. Brown, 7 Vet.App. 498 (1995);
Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Regulations
also require a continuity of symptomatology to link the post-
service symptoms to injury during service when the fact of
chronicity in service is not adequately supported. 38 C.F.R.
§ 3.303(b) (1996). In order to prevail on a direct basis the
veteran would have to provide competent medical evidence
which relates his current disorders to either his period of
active service or to mustard gas exposure during his period
of active service.
The law provides that “a person who submits a claim for
benefits under a law administered by the Secretary shall have
the burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim is
well grounded.” 38 U.S.C.A. § 5107(a) (West 1991).
Establishing a well-grounded claim for service connection for
a particular disability requires more than an allegation that
the disability had its onset in service or is
service-connected; it requires evidence relevant to the
requirements for service connection and of sufficient weight
to make the claim plausible and capable of substantiation.
See Franko v. Brown, 4 Vet.App. 502, 505 (1993); Tirpak v.
Derwinski, 2 Vet.App. 609, 610 (1992); Murphy v. Derwinski,
1 Vet.App. 78, 81 (1990).
The three elements of a “well grounded” claim are: (1)
evidence of a current disability as provided by a medical
diagnosis; (2) evidence of incurrence or aggravation of a
disease or injury in service as provided by either lay or
medical evidence, as the situation dictates; and, (3) a
nexus, or link, between the inservice disease or injury and
the current disability as provided by competent medical
evidence. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995),
aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996); see also
38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1996).
II. Factual Background
The veteran contends that he was exposed to mustard gas
during his service in the United States Army during World War
II. Specifically, he alleges that he participated in mustard
gas training exercises “at Shepperds Field in Texas between
1945 and 1947.” As a result of this alleged exposure, he
claims to have incurred a skin disorder on his hands and
arms.
The RO has retrieved the veteran’s service medical records
and they appear to be complete. The veteran’s entrance
examination, dated May 1945, noted essentially normal
findings throughout. A medical treatment report, dated
December 1946, revealed that he was hospitalized for a period
of 27 days for treatment of a chancroid lesion and verruca
accuminata on his penis. His separation examination, dated
January 1947, noted that his skin and genito-urinary system
were normal.
The veteran’s Report of Transfer or Discharge, Form DD 214,
noted that he served a second term of service from September
1955 to September 1957. His separation examination, dated
August 1957, revealed that his skin, lymphatics and genito-
urinary system were normal. A Report of Medical History,
completed by the veteran pursuant to this examination,
indicated that he had not previously had a tumor, growth,
cyst, or boils.
Post service medical records reveal that the veteran was
treated for a fractured tibia, left patella and femur, as a
result of a motor vehicle accident in January 1979. In
November 1979, a VA Compensation and Pension examination was
conducted pursuant to a nonservice-connected pension claim
filed by the veteran. The report of this examination noted,
in pertinent part, that he had “a fine macular reddish rash
over the anterior abdomen. No other skin abnormalities were
noted.
Current medical records, dated June 1992 to June 1993, were
submitted from the VA Medical Center in Jackson, Mississippi.
A treatment record, dated April 1993, noted the veteran’s
complaints of an itching rash on both arms. The report
listed a diagnosis of dermatitis. The etiology of this
condition, however, was not discussed.
A hearing before the traveling section of the Board was
scheduled for January 30, 1996. The veteran, however, failed
to appear. In May 1997, his representative submitted his
Informal Hearing Presentation in which he indicated that
“[b]ased on the medical records the veterans [sic] has not
been treated for any skin disorders nor has there been any
evidence of scar formation.”
III. Analysis
As noted above, regulations provide for service connection on
a presumptive basis for various disorders as a result of
exposure to mustard gas during active service. Assuming,
without deciding the matter for the purposes of this
decision, that the veteran was exposed to mustard gas in
service, the Board notes that the his current dermatitis
disorder is not among those listed in the regulation.
Accordingly, the veteran still has the burden of submitting
evidence sufficient to justify a belief by a fair and
impartial individual that the claim is well grounded. The
veteran must provide competent medical evidence which relates
his dermatitis disorder to either his period of active
service or to mustard gas exposure during his period of
active service.
After reviewing the veteran’s service medical records, the
Board concludes that the veteran’s dermatitis was not
incurred in or aggravated during his active military service.
His service medical records do not show a diagnosis of, or
treatment for, this condition. A medical treatment report,
dated December 1946, reveals treatment for a chancroid lesion
and verruca accuminata on his penis. This condition,
however, was transitory in nature and resolved with
treatment. Both of his separation examinations, dated
January 1947 and August 1957, show that his skin was normal.
As the veteran has not shown that this condition was incurred
in or aggravated by his active military service, his claim
for service connection must be denied.
The veteran’s contention that his skin disorder of the arms
and hands is related to exposure to mustard gas is not
competent evidence to establish the etiology of this
disorder. Medical diagnosis and causation involve questions
that are beyond the range of common experience and common
knowledge and require the special knowledge and experience of
a trained physician. Because he is not a physician, the
veteran is not competent to make a determination that his
current dermatitis is the result of his exposure to mustard
gas over four decades ago. See Espiritu, 2 Vet.App. at 495;
Grottveit v. Brown, 5 Vet.App. 91, 93 (1993).
The Board has thoroughly reviewed the claims file, but finds
no evidence of a plausible claim for a skin disorder of the
hands and arms, claimed as residuals of exposure to mustard
gas during service. Since the veteran has not met his burden
of submitting evidence sufficient to justify a belief by a
fair and impartial individual that the claim is well
grounded, it must be denied. See Boeck v. Brown, 6 Vet.App.
14, 17 (1993) (if a claim is not well grounded, the Board
does not have jurisdiction to adjudicate it).
Where the veteran has not met this burden, the VA has no duty
to assist him in developing facts pertinent to his claim,
including no duty to provide him with another medical
examination. 38 U.S.C.A. § 5107(a) (West 1991); Rabideau,
2 Vet.App. at 144 (where the claim was not well grounded, VA
was under no duty to provide the veteran with an
examination). However, where a claim is not well grounded,
it is incomplete, and depending on the particular facts of
the case, VA may be obliged under 38 U.S.C.A. § 5103(a) to
advise the claimant of the evidence needed to complete his
application. See Robinette v. Brown, 8 Vet.App. 69, 77
(1995). In this case, however, the RO has complied
substantially with this obligation in its September 1993
Statement of the Case. Unlike the situation in Robinette,
the veteran has not put VA on notice of any other records.
Although the RO did not specifically state that it denied the
veteran’s claim on the basis that it was not well grounded,
the Board concludes that this error was harmless. See
Edenfield v. Brown, 8 Vet.App. 384 (1995) (en banc), aff’g. 6
Vet.App. 432 (1994).
ORDER
Because it is not well grounded, the veteran’s claim for
service connection for a skin disorder of the hands and arms,
claimed as residuals of mustard gas exposure during active
service, is denied.
JAMES W. ENGLE
Acting Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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